Stevenson v. North Carolina Dept. of Ins.

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229 S.E.2d 209 (1976)

31 N.C. App. 299

E. Alexander STEVENSON, Jr. v. NORTH CAROLINA DEPARTMENT OF INSURANCE and John Randolph Ingram, Commissioner of Insurance.

No. 7610SC680.

Court of Appeals of North Carolina.

November 3, 1976.

Certiorari Denied December 21, 1976.

*210 Bailey, Dixon, Wooten, McDonald & Fountain by J. Ruffin Bailey, Ralph McDonald and Richard G. Chaney, Raleigh, for plaintiff-appellee.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. T. Buie Costen, Raleigh, for defendants-appellants.

Certiorari Denied by Supreme Court December 21, 1976.

BRITT, Judge.

Defendants contend first that the superior court had no authority to enter a stay order of plaintiff's dismissal before the exhaustion of his administrative remedies before the State Personnel Commission. We agree with this contention.

Under G.S. 126-35 of our State Personnel Act, ". . . [t]he employee, if he is not satisfied with the final decision of the head of the department, or if he is unable, within a reasonable period of time, to obtain a final decision by the head of the department, may appeal to the State Personnel Commission." By virtue of G.S. 126-4(9) the commission's authority now includes "the investigation of complaints and the hearing of appeals of applicants, employees, *211 and former employees and the issuing of such binding corrective orders or such other appropriate action concerning employment, promotion, demotion, transfer, discharge, and reinstatement in all cases as the Commission shall find justified."

Under G.S. 12643 the provisions of the Administrative Procedure Act, Chapter 150A, apply to the State Personnel System and hearing and appeal matters before the State Personnel Commission. Therefore, final agency decisions of the commission are subject to judicial review under Article 4, Chapter 150A of the Administrative Procedure Act once the aggrieved person has exhausted all available administrative remedies made available to him by statute or agency rule.

In the present case, plaintiff is in the process of exhausting his administrative remedies by appealing his dismissal to the commission. He is not seeking "judicial review" at this time nor would it be appropriate since he has not exhausted his administrative remedies as required by statute. Nevertheless, he contends that Judge Smith's orders were proper pending the outcome of final review of plaintiff's appeal under the State Personnel Act and the Administrative Procedure Act. Plaintiff relies on G.S. 150A-48 which states that:

"At any time before or during the review proceeding, the person aggrieved may apply to the reviewing court for an order staying the operation of the agency decision pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper and subject to the provisions of G.S. 1A-1, Rule 65."

Although we recognize the vagueness of the quoted statute, we feel that taken in its proper context, it authorizes a stay order only of those final agency decisions in which the person aggrieved has exhausted his administrative remedies. G.S. 150A-48 must be construed in pari materia with the rest of Article 4, Chapter 150A, entitled "Judicial Review", and particularly G.S. 150A-43 which states that "[a]ny person who is aggrieved by a final agency decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under this Article . . ."

We think that G.S. 150A-48 was meant to entitle the aggrieved person to a stay order only after the final agency decision and either before or after the initiation of judicial review. Final agency decisions should be rendered after a hearing held without undue delay under G.S. 150A-23. G.S. 150A-44 provides that "[u]nreasonable delay on the part of any agency in reaching a final decision shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency." In the present case, this right may be asserted to prevent unreasonable delay in reaching a final agency decision but we do not think the superior court had authority to enter a stay order respecting plaintiff's dismissal pending final administrative review. King v. Baldwin, 276 N.C. 316, 172 S.E.2d 12 (1970).

In view of our holding that the superior court did not have authority to enter the orders appealed from, we find it unnecessary to discuss and pass upon the other contentions argued in defendants' brief.

For the reasons stated, the orders appealed from are

Reversed.

PARKER and CLARK, JJ., concur.

CLARK, Judge (concurring):

I concur in the result, and I agree that in the ordinary case injunctive relief should not be granted before the employee has exhausted his administrative remedy. The majority, in "holding that the superior court did not have authority to enter the orders", is apparently ruling that our courts under no circumstances have jurisdiction or authority to grant injunctive relief to an employee before administrative relief under the Personnel Act and Administrative Procedure Act has been exhausted. In my opinion there may be extraordinary circumstances *212 where the administrative remedy is so inadequate and the damage so irreparable that the courts should protect the rights of an employee by the use of its equity jurisdiction in granting an injunction before administrative remedy is exhausted.